OFFICIALS TO FIGHT MARIJUANA LOOPHOLE

Court Rejects Impaired Driving Conviction

POCATELLO - Bannock County Sheriff Lorin Nielsen is happy some
legislators will try to close a loophole in the law that may allow
people to drive high on marijuana in Idaho as long as they don't drive
recklessly.

"Any kind of impairment is a danger to you when you're driving,"
Nielsen said. "You need to be in full control of your faculties."

In overturning an impaired driving conviction, the 9th U.S. Circuit
Court of Appeals ruled Jan. 14 that a loophole in Idaho law means
marijuana users can drive legally as long as they don't drive
erratically and can pass a field sobriety test.

A three-judge panel of the San Francisco-based court wrote that
Idaho's impaired driving law makes it illegal to drive under the
influence of alcohol and narcotics. But Idaho doesn't list marijuana
as a narcotic.

"I am reviewing the court's decision ... and sure enough, our code
does not define marijuana as a narcotic. It has a separate definition
of its own," said Idaho Senate Judiciary Chairman Denton Darrington,
R-Declo, in an interview with the Journal last week.

"We will analyze it and take a look ... and see what we can do that's
useful to solve this problem," Darrington said. "Obviously, we don't
want a bunch of marijuana smokers who may be impaired driving vehicles
in the state of Idaho."

"The reason people smoke marijuana is because of the impairment it
causes and they should not be driving," Nielsen said.

Michael J. Fica, an assistant U.S. attorney in Pocatello, said the
government was considering asking the circuit court to review its
decision, or requesting the U.S. Supreme Court to hear the case.

Darrington said he hopes the decision is appealed successfully to the
U.S. Supreme Court, because of the circuit court's reputation for
being overturned by the Supreme Court.

"But that takes a lot of time," Darrington added. "In the meantime,
we've got a message out there that says, 'You can smoke marijuana and
drive in Idaho.' That's a message we don't particularly want out."

Nielsen said "Senator Darrington has been a very good supporter of law
enforcement" and hopes "our Legislature takes a good, hard look at
this and corrects it this session."

"I would support closing the loophole," Rep. Kent Kunz, R-Pocatello,
said.

"I think it's likely to (be reviewed this session) now that it's been
highlighted with the overturning of this case," said Sen. Evan
Frasure, R-Pocatello. "We are already in communication with the
attorney general's office and the governor's office."

Frasure said re-examining the law could open up an opportunity to take
a look at some of the newer designer drugs.

Idaho Attorney General Al Lance's office issued a press release this
week that said the court's decision "does not overturn Idaho's
prohibition against driving a vehicle while under the influence of
marijuana."

Lance said driving under the influence of any intoxicating substances
is prohibited by Idaho Code 18-8004(1)(a), which states, "It is
unlawful for any person who is under the influence of alcohol, drugs
or any other intoxicating substances...."

"The Ninth Circuit did not consider or make any reference to Idaho
Code ... in deciding the case," Lance said. "There should be no
misunderstanding; it is a crime to drive while under the influence of
marijuana in the state of Idaho."

The court said that because marijuana is not listed as a narcotic,
Matthew Patzer could not automatically be presumed impaired, like
motorists who have been drinking alcohol.

After a New Plymouth police officer noticed his glassy eyes, Patzer
admitted to smoking marijuana at a party on Sept. 27, 1988. Patzer
passed two field sobriety tests before being arrested for driving impaired.

"Given the distinction drawn by the statute, there is no basis to
conclude that impairment may be presumed upon admission of use of a
non-narcotic drug," the appeals court wrote.